Below, Kevin Russell of Howe & Russell previews next term’s Pacific Bell Telephone Co.,dba AT&T California v. linkLine Communications (07-512). Please note that the SCOTUSwiki for linkLine, here, will continue to be updated throughout the upcoming term.

Background

1.  AT&T and its affiliates dominate the California market for wholesale DSL services.  It also sells retail DSL services directly to customers.  It is thus “vertically integrated” in the lingo of antitrust.  That being so, one might imagine that AT&T would be the only provider of DSL services to customers in California, since it controls the infrastructure for providing DSL services at the wholesale level and presumably would have no interest in selling DSL wholesale to others who wished to compete with AT&T in the retail market.

However, under the Telecommunications Act of 1996, AT&T is required by law to sell wholesale DSL to other companies that, in turn, sell retail DSL to customers.  These are the ubiquitous “internet service providers” (ISPs), like EarthLink and, important to this case, a company called linkLine.   These smaller companies buy DSL from AT&T at wholesale prices and then turn around and sell internet access to households and businesses at retail for a higher price, the difference covering their operating costs and profit.  AT&T does the same thing with its retail DSL sales.  That makes it both the supplier (at the wholesale level) and competitor (at the retail level) of ISPs like linkLine.

This case arises from linkLine’s antitrust complaints about the prices AT&T charged ISPs at the wholesale level and the price it charged its own retail customers for DSL access.  In particular, linkLine accused AT&T of putting a “price squeeze” on its wholesale customers/retail competitors by charging relatively high prices at wholesale and relatively low prices at retail, thereby making it impossible for anyone other than AT&T to sell retail DSL services at a profit.  (Using completely made-up numbers, consider this sort of example: AT&T might charge $100 per unit for wholesale DSL and then $105 for the same unit at retail.  Unless the independent ISPs’ costs are less than $5 per unit, they will not be able to compete.)

AT&T moved to dismiss the complaint as failing to state an antitrust violation.  In particular, AT&T argued that under the Supreme Court’s 2004 decision in Verizon v. Trinko, there can be no price squeeze claim when the vertically integrated wholesaler/retailer has no antitrust duty to sell its product or services to its retail competitors in the first place.  (The key phrase is “antitrust duty,” since AT&T clearly had a statutory duty under the Telecommunications Act to sell to linkLine.)

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Lawyers for a group of non-union public employees challenging the spending of their security fees on litigation outside their bargaining unit have asked the Court to deny the Solicitor General’s request for divided argument in Locke v. Karass (07-610).

Last week, the Solicitor General, which filed an amicus brief in support of neither party, requested that the Court allot 10 minutes of argument time to the federal government, and divide the remaining time between the two parties. It noted that both the employees and the union opposed the motion.

The opposition, filed Monday by attorneys at the National Right to Work Legal Defense Foundation, contends that 17 of the 22 pages in the government’s brief oppose the employees’ position, and the the respondent union’s brief cites it 14 times in support of its argument.  Jeremiah Collins, a lawyer for the respondent, said the union did not plan to file an opposition.

In this week’s academic round-up, I would like to profile some articles from an online journal, the Northwestern University Law Review Colloquy, that has done a particularly good job of providing timely analysis of recent Supreme Court decisions. The Colloquy’s focus on recent developments in the Supreme Court seems particularly well-suited to an online journal because the content is available very quickly and the articles for these journals tend to be relatively short. In any event, below are some recent articles in the Colloquy that are well worth reading:

Cathy Sharkey (New York University School of Law) has published a two-part essay entitled “What Riegel Portends for FDA Preemption of State Law Products Liability Claims,” see here and here. With the Wyeth v. Levine case looming for next Term, Professor Sharkey’s essay is particularly timely. In it, she urges the Court to consider the agency record in making decisions about implied conflict or obstacle preemption based on what she has previously termed the “agency reference model.” Of course, Riegel turned out to be an express preemption case, at least as the Court framed the issue. However, as Professor Sharkey notes, Wyeth is extremely likely to turn on implied preemption principles. Thus, her parsing of both the opinion and oral argument transcript in Riegel may provide a sneak preview as to how the Court may address the issues in Wyeth.

Glenn Reynolds (University of Tennessee College of Law) and Brannon Denning (Cumberland School of Law) have published an essay entitled “Heller’s Future in the Lower Courts,” see here. Professors Reynolds and Denning provide a highly-readable account of the Court’s recent decision in Heller, noting that much of the impact of the decision will be decided in the lower courts given the fact that the Court failed to provide a standard of review for claims arising under the Second Amendment. They also hypothesize that, given the historical hostility of the lower courts to the “individual rights” view of the Second Amendment, it is quite possible that the lower courts will adopt a very narrow interpretation of the Heller decision. On the other hand, the authors discuss a number of reasons why Heller might turn out to be much more significant decision than many people might predict.

One of the Guantanamo Bay detainees facing war crimes charges claiming direct roles in the Sept. 11/ 2001, terrorist attacks — Ramzi bin al-Shibh — has asked a federal judge to block his trial before a military commission.  Public defender lawyers for bin al-Shibh, in papers made public on Monday, argued that his trial should be blocked so that his lawyers can go ahead with their challenge claiming that the military commission system is illegal.

“This Court,” the motion for an injunction argued, “must have the opportunity to carefully review [that challenge] and determine by what procedures, if any, [bin al-Shibh] may lawfully be tried before he is forced to undergo an unlawful trial.”

The detainee is one of the four prisoners at Guantanamo — called “high-value detainees” by the government — who have been charged with crimes growing out of the 9/11 attacks.  Military prosecutors have said that bin al-Shibh was “a coordinator of the 9/11 attacks.” He was captured in September 2002 at a site that prosecutors said was “an al-Qaeda safe house.” A date for his commission trial has not been set, but his motion said it was “imminent.”

bin al-Shibh’s habeas challenge to his detention and trial is now pending before District Judge Emmet G. Sullivan (the case is bin al-Shibh v. Bush, et al., docket 06-1725).  Judge Sullivan is one of two judges in Washington who have chosen to handle themselves the habeas cases before them, rather than send them to a “coordinating” judge for at least preliminary processing.

Judge Sullivan has been pressing both sides to spell out, in brief form, just why those habeas cases cannot be moved along swiftly to a conclusion.

bin al-Shibh’s attempt to stop his war crimes trial is the second such attempt by a Guantanamo detainee.  Salim Ahmed Hamdan — the first to go on trial before a commission at Guantanamo (he is not a “high-value” detainee) — failed to persuade District Judge James Robertson to delay his trial.

The Justice Department, having succeeded in keeping the Hamdan trial on track, repeated in its response to bin al-Shibh’s plea for an injunction with many of the same arguments it used against Hamdan’s request.

(The documents on the injunction plea can be found on the District Court’s website, through the PACER document access system, under the docket number (06-1725).

The Justice Department, in a bold legal maneuver, on Monday afternoon asked the Supreme Court to rehear a major case on the death penalty, saying the basis of the decision had been “undermined.” The decision at issue was the 5-4 ruling on June 25 in Kennedy v. Louisiana (07-343), barring the death penalty for the crime of raping a child. The federal government was not involved in that case. Although the Court’s rules do not allow non-parties to ask that a case be reheard, the Solicitor General’s office filed a motion asking permission to do so, arguing that the Court should grant the state of Louisiana’s plea for rehearing. The motion can be found here.

“The United States,” Acting Solicitor General Gregory G. Garre argued in the motion, “has a substantial interest in rehearing because the Court’s decision casts grave doubt on the validity of a recent Act of Congress and Executive Order of the President authorizing capital punishment for child rapists under the Uniform Code of Military Justice”– the law that governs crimes committed by those in military service.

The motion is based primarily upon the fact that the Court, in striking down Louisiana’s law on the death sentence for child rape, did not take account of a federal law authorizing that penalty in the military justice system.  No one involved in the case had mentioned that law to the Court, and Justice Anthony M. Kennedy’s opinion for the majority noted the supposed absence of a federal law on the subject in a survey of whether there was a “national consensus” for or against such punishment.  The omission, discovered by a military law expert and mentioned on his blog, led Louisiana to ask formally that the case be reopened to consider the military law provision.

The Solicitor General’s office reacted earlier to the omission by saying that, if rehearing were sought, it would “consider what steps are appropriate.” On Monday, the answer came, one week after Louisiana asked for a new review.

The new motion contended: “The Court’s decision and, in particular, its assessment of the ‘national consensus with respect to the death penalty for child rapists’, was not informed by those recent pronouncements [of Congress and the President].”

Under the Court’s rules, a rehearing of a decided case can come about only if one of the Justices who voted with the majority supports rehearing, and there are five votes to do so. And, under the rules, the Court almost never will grant a new review of a decided case without first asking for a reaction from the other side — here, the lawyers for Patrick Kennedy, the Louisiana inmate involved.

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UPDATE Tuesday morning. The case has been assigned docket number 08-1289, before District Judge Ricardo M. Urbina.

Dick Anthony Heller, the security guard with a desire to have a gun in his Washington, D.C., home who won the right to do so from the Supreme Court, returned to federal court on Monday with a claim that his new-found right has already been violated.  Joined by two other Washington residents, Heller filed a lawsuit to challenge the just-enacted District of Columbia gun law replacing provisions struck down by the Supreme Court. The complaint in Heller, et al., v. District of Columbia can be found here.  (The case does not yet have a docket number in District Court.)

The lawsuit contended that the D.C. City Council violated his Second Amendment right by adopting a new ban on machine guns written so broadly as to outlaw “ordinary handguns and other firearms which are semiautomatic,” by authorizing local police to impose “onerous” new restrictions on registering handguns, and by enacting new limits on when a gun in the home could be loaded and unlocked or disassembled.

Heller and another resident, Absalom F. Jordan, Jr., asserted in the lawsuit that they had been denied permits this month for semiautomatical pistols because the weapons were each treated as a “machine gun.” A third resident, Amy McVey, contended, as did the other two Washingtonians, that they were required to go through extensive checks in order to try to register handguns.   They also contended that the new restrictions on having handguns loaded and unlocked in the home were unduly burdensome on their right to have a gun for self-defense.

The lawsuit asked the Court to strike down the challenged provisions under the Second Amendment, to issue an order requiring the registration of semiautomatic pistols (if those shoot no more than 12 shots without reloading manually), to bar the new requirement that any gun offered for registration go through a ballistics text, and to nullify the new restrictions on having a gun ready for self-defense at home.

In a new sequel to the Supreme Court’s ruling that for the first time allowed a ban on a method of abortion, the Fourth Circuit Court agreed on Monday to reconsider the constitutionality of Virginia’s five-year-old prohibition on abortion by the so-called “partial-birth” method. That law has never gone into effect, since it was successfully challenged immediately.  In seeking a new review, the state of Virginia asked the 11-member en banc Court to rule that abortion laws may not be challenged before they actually go into effect – a ruling that has the potential to affect abortion cases well beyond Virginia.

The Supreme Court majority, in the 5-4 ruling in Gonzales v. Carhart in April 2007, sought to discourage such so-called “facial attacks” on abortion laws, but in the end said it did not need to resolve the debate that has persisted for years over that question.

That question was one of three the state of Virginia raised on June 2 in asking the Circuit Court based in Richmond to reconsider a split panel decision on May 20 striking down in its entirety the 2003 Virginia “partial birth infanticide” law.  The panel had reconsidered an earlier ruling against the law, after the Supreme Court told it to take into account Gonzales v. Carhart.

In an order supported by a majority of its judges, the Circuit Court granted rehearing before the full bench, and tentatively set the case for oral argument in the last week of October.  Only if the Circuit Court moved very rapidly could the case be decided in time to get it before the Supreme Court for decision in its next Term that starts Oct. 6.

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The Supreme Court on Monday released the schedule of oral arguments for the sitting beginning Monday, Nov. 3.  The calendar can be found here.  On three of the five days on the calendar, the Court will hear three cases each; morning arguments begin at 10 a.m., afternoon at 1 p.m. Four of the highly visible cases granted for the new Term are to be heard during this session: tests of states’ power to regulate drug labeling, the government’s authority to ban vulgar words on radio and television, the use of crime lab reports in criminal trials, and the placement of religious monuments in public parks.  Although Tuesday, Nov. 4, is election day, the Court will hold hearings.

Here are the scheduled cases, with summaries of the issues at stake:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

A copy of today’s orders list is now available here.

The Supreme Court, issuing its first round of summer orders, took no action on Monday on a request to reconsider its ruling in Kennedy v. Louisiana (07-343), barring the death penalty for the crime of child rape.  Similarly, it did not act on a rehearing plea in a pair of cases involving the U.S. military’s power to turn over to Iraq two citizens charged with crimes in that country (Munaf v. Geren, 06-1666, and Geren v. Omar, 07-394).

Although the Court could act on those cases at any time, the next scheduled release of orders on such matters is Monday, Aug. 18.

The Court is in recess for the summer. The opening conference for next term will take place September 29. Oral arguments will resume October 6.

On Monday, the Court will release its first group of summer orders. While such orders are usually routine, involving such issues as participation in oral argument or assignment of counsel, the Court has before it three matters of wider interest which may or may not be addressed. 

One is the dispute over whether the respondents are entitled to some $488 million in interest on top of the $507.5 million punitive damage award resulting from the decision in Exxon v. Baker (07-219).  The second is the respondent’s petition for rehearing in Kennedy v. Louisiana (07-343) based on the recent revelation of a federal law allowing capital punishment for child rape in the military context.  In that case, the Solicitor General has said the federal government is considering whether to file its views. The third is the petition for rehearing in Munaf v. Geren (06-1666) and Geren v. Omar (07-394) based on the contention of two U.S. citizens being held in Iraq by coalition forces that the Iraqi government does not wish to commence prosecution against them.

By Friday, both sides are to file responsive briefs in U.S. District Court on the procedural framework for Guantanamo Bay detainees’ habeas cases.

Petitioners’ merits briefs are due Wednesday in Chambers v. United States (06-11206) and Thursday in Peake v. Sanders (07-1209) and Bell v. Kelly (07-1223). Respodents’ merits briefs are due Friday in FCC v. Fox Television Stations (07-582), and Vaden v. Discover Bank (07-773).

In the first formal moves to shape the federal courts’ review of the government’s power to keep detainees in captivity at Guantanamo Bay, the two sides in the courthouse battle proposed sharply differing approaches on Friday night. With agreement on few critical points, lawyers for the government and for detainees set up a running dispute that potentially could lead quickly to multiple appeals, perhaps reaching the Supreme Court.

As expected, the detainees’ attorneys suggested a sweeping and penetrating, if somewhat flexible, probe of the government’s reasons for original detention decisions and for continuing to confine captives, and Justice Department attorneys proposed a more streamlined process that would significantly narrow the judges’ review.

The briefs are each side’s attempt to carry out their view of what the Supreme Court had in mind in its June 12 decision (Boumediene v. Bush, 06-1195) declaring that the detainees have a constitutional right to challenge their captivity.  The detainees’ arguments stress the historic importance of a detailed examination of Executive Branch decisions to hold individuals without charges, while the government’s arguments stress the need to keep the process confined in order not to intrude on the Executive’s “wartime” powers.

These opening briefs on the “procedural framework” for 200 or more habeas challenges by detainees were filed in U.S. District Court in Washington shortly before midnight Friday. While the briefs were not designed to discuss just what constitutional rights the detainees may have during this process, those are discussed to some extent — with significant disagreement.

The detainees’ brief can be found here, the government brief here, and the government’s proposed “case management” order is here. Each side will file a response to the other’s document by Aug. 1.

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Analysis

One of the Supreme Court’s most significant rulings in years on water pollution was somewhat confusing when decided, but it seems even less clear after two years. That was the ruling in Rapanos v. U.S. (04-1034), seeking to clarify just how far the government could go to regulate pollution of wetlands — that is, the sometimes dry, sometimes damp, sometimes flowingly wet lands that are — sometimes — protected by the Clean Water Act.

In one of five opinions that emerged in Rapanos, Chief Justice John G. Roberts, Jr., wrote: “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act.  Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

And, perhaps not surprisingly, the lower courts have split on what Rapanos means.  The lead opinion in that case, written by Justice Antonin Scalia, took the narrowest view of government authority to regulate wetlands. A somewhat broader view was expressed in a concurrence by Justice Anthony M. Kennedy. A dissent by Justice John Paul Stevens argued for an even greater authority, but said the Clean Water Act would at least apply if either the Scalia or Kennedy approach were followed.

The core issue dividing the lower courts since then is which, if any, of the several opinions actually states the law on the Act’s reach.  Some have said Scalia’s approach controls, others have opted for Kennedy’s, and at least one has said either.

The Supreme Court has so far declined to take on the new dispute; it turned down appeals twice last October and once in June, each time apparently accepting the view of the Justice Department (on the winning side in lower courts in each of those case) that those particular appeals were not proper ones for review.

The issue, however,  persists, and the Justice Department is itself pondering a possible appeal after losing a case in the Eleventh Circuit Court — a decision that solidified the lower courts’ division on Rapanos‘ scope.  The case is U.S. v. Robison; the government has until Aug. 22 to decide whether it is going to appeal.

And the Department will have a chance to respond even sooner because of a pending appeal in a case from the Fifth Circuit (the U.S. reply is currently due Aug. 6).  That new case is Lucas, et al., v. U.S. (07-1512, see the petition and appendix here). In the meantime, Justice Antonin Scalia has pending before him a plea (docket 08A70) asking him to release from prison the three individuals convicted in that case of violating the Clean Water Act.  That application was filed Thursday.  Scalia could act on it alone, or refer it to the full Court.  (Both documents contain large files.)

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NOTE: The District Court in Washington has now created a web page for the Guantanamo cases.  A news release providing information about the page is here.

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The Justice Department on Friday notified the federal judge in charge of coordinating scores of new Guantanamo Bay detainees’ cases that it is appealing his order requiring the government to give advance notice before it moves any prisoner out of the military prison on the island of Cuba.  This marks the first appeal in what could be a number of them as deep controversies continue to split government attorneys and lawyers for the captives.

On July 10, in one of his first significant actions as coordinating judge, Senior U.,S. District Judge Thomas F. Hogan told the government to provide detainees, their lawyers and the Court 30 days’ advance notice “of any intended removal” of a prisoner from Guantanamo — if a detainee’s counsel asks for such an order, as many now have.

Hogan did say in the order that he recognized that issues over a judge’s power to order such notice were pending in the D.C. Circuit Court, and added that nothing in his order for such notice should be interpreted as a ruling on such power.  Even so, the judge said, he was adopting the view of some District judges who in the past had blocked such transfers unless there was such advance notice.

The Justice Department has argued strenuously that federal judges have no authority to interfere with government decisions on transfers of Guantanamo detainees to any other place.  It has contended that Congress, in the Military Commissions Act of 2006, took away any such authority from judges.  It also has argued that judicial interference with transfers would violate the Constitution’s separation-of-powers doctrine.

In a notice of appeal Friday, the Department said it was appealing Hogan’s order “in its entirety” in 117 pending habeas cases filed by detainees.  The notice, as usual, contained no explanation of the basic and scope of the appeal, other than contesting all of the Hogan order.

In the first effort to win release into the U.S. — to the Washington, D.C., area — of a Guantanamo Bay detainee, lawyers for a member of a Chinese Muslim minority have asked a federal judge to order the Pentagon to free him immediately.  The individual is Huzaifa Parhat, whose case is the furthest along of any of more than 200 Guantanamo prisoners who are challenging their detention.

Last month, the D.C. Circuit Court, in the first ruling of its kind, decided that the Pentagon had failed to justify continuing to hold Parhat. (A post describing the ruling can be read here) It said that he had the option of seeking his release in District Court, but did not itself order that. In fact, it did not decide directly that it had the power to order him freed, but it said a District Court judge had that authority,  It also said that, among other reactions to its rulings, the government might seek to transfer Parhat to another country, or might try to hold a new Pentagon review to offer any new evidence it might have to continue holding him.

Parhat’s attorneys did not wait for the Pentagon to take the first step, moving instead on Wednesday to obtain a prompt hearing on his plea that he is legally entitled to release, and then to order him freed under “such conditions for reporting and monitoring as are reasonable in the circumstances.” Parhat should be brought to the court for that hearing, his lawyers asserted.

The documents were cleared by a court security officer for release Thursday. The motion for release, with a supporting legal memorandum, can be found here. A separate motion for a final ruling on his habeas application, seeking release, was also filed, along with a legal memorandum.

His lawyers said in one of the filings that they expect the government “to vigorously oppose” the plea for an immediate ruling on his right to be released. They also said that they expected it would be “time-consuming” for a District judge to rule, followed by “potential appeals.”  But they explicitly asked that he be released while his challenge goes forward in court, as a form of “interim relief.”

By coincidence, the papers were filed two days after Attorney General Michael B. Mukasey, in a major speech on detainees, urged Congress to pass a new law barring any judge from issuing an order “that an alien captured and deained abroad during wartime be admitted and released into the United States.”  (It does not appear that Congress will act quickly on that request.)

Parhat’s attorneys said that there is a community of about 250 individuals of Chinese ethnic Uighurs — like Parhat — living in the Washington area, and is in a position to help him “negotiate the linguistic and practical challenges” of being in America, and help him understand his obligation to meet any conditions imposed on him while he awaits a ruling on his legal challenge.  The attorneys said the judge may want to order regular reporting to various government agencies, and to impose restrictions on his travel.

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On Tuesday, we filed this cert. petition in Flores-Figueroa v. United States.  The petition asks the Court to resolve a 3-3 circuit split over the mens rea requirement of the federal “aggravated identity theft” statute, 18 U.S.C. § 1028A(a)(1).  That statute provides a mandatory 2 year sentence upon anyone who, during and in relation to certain enumberated felonies, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”  The question is whether the “knowingly” requirement extends through the entire clause, requiring the Government to show that the defendant knew that the identification he used belonged to another person.  The question arises frequently in immigration cases, when defendants acquire or make up false social security numbers having no idea whether the fabricated number belongs to another person or is simply invalid.

Coincidentally, this morning NPR had a story on the federal government’s increased use of this, and other, criminal charges against undocumented workers.  The piece includes an interview with our co-counsel in Flores-Figueroa, Gary Koos.

 The petition was filed by Howe & Russell, along with Mr. Koos, Akin Gump, and the Stanford Supreme Court Litigation Clinic, with assistance from Howe & Russell summer intern and Stanford student Josh Friedman. 

Below, Karen Williams previews next term’s Bell v. Kelly (No. 07-1223). Karen is a summer associate at Akin Gump and a third-year at American University, Washington College of Law. Please note that the Bell SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.

28 U.S.C. § 2254(d) provides that:

“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Pursuant to Section 2254(d), a federal court, therefore, does not determine if the state court’s determination was wrong but whether it was unreasonable, which is a higher threshold. The question before the Court is whether the Fourth Circuit erroneously applied Section 2254(d)’s deferential standard to a claim based on new evidence – not considered by the state court – that the habeas petitioner was prejudiced by the ineffective assistance of his counsel.

I. Background

This case stems from Edward N. Bell’s conviction in 2001 for capital murder for the death of Richard Timbrook, a police officer. On October 29, 1999, Officer Timbrook and two probation officers came across two men in a high-crime area of Winchester, Virginia. After one man ran, Timbrook pursued him on foot. During the chase, the fleeing man turned and shot Timbrook in the head. When Bell was found the next morning, hiding in the basement of a house near the shooting, he had gunshot residue on his hands. The murder weapon was found near that house, and forensic tests could not exclude Bell as a possible user of the weapon.
After interviewing Bell, his sisters, and his mother, defense counsel concluded that there was little evidence to mitigate the case against Bell. Defense counsel, comprised of two attorneys, did not interview Bell’s wife, past girlfriends, or children, nor did they inquire into Bell’s education or mental capacity. They also did not investigate the prosecution’s evidence of aggravation.

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Analysis

 The Supreme Court, in a four-sentence order without explanation, and a few comments in an opinion in another case, has set off a sharp dispute about whether it has put an end to the two-year courthouse battle over Congress’ preferred method for civilian review of military detention decisions.  The questions now arise: is the D.C. Circuit Court’s hard-fought ruling in Bismullah v. Gates a dead letter, and, has the Detainee Treatment Act of 2005 died along with it?

The Circuit Court may soon provide some answers. In the process, it may offer some significant interpretations of what the Supreme Court may have wanted to happen as lower courts continue to sort out detainees’ rights.  (Because Congress is unlikely to act on Attorney General Michael B, Mukasey’s proposal to repeal the DTA, the courts will have the task of sorting this out.)

The underlying controversy goes back to 2005.  After Congress had grown worried that the federal courts would be swamped with cases by Guantanamo Bay detainees testing their long-term captivity, it passed DTA that year (reinforced in 2006 by the Military Commissions Act).  The idea was to scuttle all of the habeas cases, and set up an alternative mode of civilian court review, more limited than habeas, and assigned to the D.C. Circuit Court.  Its task: judge the validity of detention rulings made by the Pentagon’s Combatant Status Review Tribunals.

Bismullah, originally filed at the Circuit Court in June 2006, was the case the Circuit Court chose, along with lawyers for both sides, for a thorough exploration of how rigorous that Court would be in reviewing some 190 cases growing out of CSRT decisions designating detainees as “enemy combatants.”

When the Supreme Court last year agreed to rule on the basic legal rights of Guantanamo detainees (in Boumediene v. Bush, 06-1195), it said it would be interested in what the Circuit Court did in the Bismullah case.

A three-judge panel of Circuit judges ruled a year ago that the Pentagon and other government agencies would have to produce a potentially wide array of information about detainees, to make the system of civilian review work as the panel thought Congress intended. It was not enough, the panel declared, to have before it only the material that a CSRT actually had considered.

That was a bitter blow to the government, and it produced sworn statements by the entire top rank of U.S. intelligence officials saying that the decision posed a serious threat to the war effort and to national security generally.

That ruling ultimately split the full Circuit Court 5-5 in February, when it denied en banc review, and the case then was swiftly appealed by the government to the Supreme Court (Gates v. Bismullah, 07-1054). The Court did not act on it, simply leaving it on its docket while it studied and then decided Boumediene, producing on June 12 a ruling that Guantanamo prisoners had a constitutional right to pursue habeas challenges to their continuing detention.  The detainees need not wait for DTA review, the Court said, but it added that the Circuit Court’s DTA role remained “intact,” as did the Pentagon’s CSRT panels.

Eleven days later, the Court sent the Bismullah case back to the Circuit Court. The four-sentence order on June 23 refused to block the Circuit Court ruling, but, in another part of the order, it set aside that ruling — that is, it “vacated and remanded” it to the Circuit Court “for further consideration in light of Boumediene.”

The case is proceeding anew in Circuit Court (Circuit docket 06-1197), and dispute between the government’s and detainees’ lawyers has now resumed, giving the Circuit Court these conflicting options: put the Bismullah case on hold and let detainee habeas cases go first (in District Court), dismiss it but with a chance to refile it later, or reinstate it as a fully binding ruling so that the DTA review process can continue in the Circuit Court even while the detainees’ habeas cases unfold in U.S. District Court.  Briefing on these options is continuing, so it is unclear when the Circuit Court will rule.

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